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State Supreme Court hears Fourth Amendment case

October 7, 2013 - Andrea Johnson

Here's a Fourth Amendment case right in our back yard. Should police be able to get a search warrant if a police dog smells marijuana in a secure apartment building outside one tenant's door? The State Supreme Court will decide that point when it hears evidence from a Fargo case today.

Last December, the Fargo police "conducted a drug dog sniff" of an apartment building in the city, one of a list of properties in the city that was supposed to be visited by the drug dog. The list of properties to be searched by the Fargo police is compiled by officers who have obtained information about possible drug use or odors at those locations, according to the appellant brief filed by Cass County Assistant State's Attorney Gary Euren.The apartment is a secure building, one that requires that people be buzzed in by a tenant before the door is unlocked. According to the brief, last December an officer in plain clothes approached the door on the north side of the apartment building and a woman who was leaving the apartment held the door open for him. The officer did not know if the woman was a tenant, if she had authority to allow him into the building and didn't tell her he was going to have the dog sniff the building. He also did not buzz to be allowed in or break in. He did not contact the apartment building's owner beforehand, did not obtain a search warrant or have any kind of permission to bring the dog into the building. Once in the building, the officer contacted his partner, who was waiting outside in the car with the dog, to come into the building with the dog.

The two officers and the K-9 then conducted a search of the building. Earl, the police drug dog, is trained to detect marijuana, cocaine, crack cocaine, ecstasy, methamphetamine, psilocybin mushrooms, and heroin, according to the statement of facts in the appellant brief. When the dog smells drugs, he lies down or sits, depending on where the odor is coming from. In this apartment building, Earl gave an "alert" outside the tenant's apartment and lay down three or four inches from the door. The dog did not touch the door.

Based on Earl's alert, the two officers obtained a search warrant for the apartment. The police searched the apartment and found marijuana and drug paraphernalia and the tenant of the apartment was arrested. Later, the tenant's lawyer made a motion to suppress the evidence on the basis that the search was illegal. Judge Wickham Corwin agreed and granted a motion to suppress all of the evidence found as a result of the search warrant. The Cass County State's Attorney is appealing the decision to the State Supreme Court today. Their argument appears to be that search warrant was legally obtained and that a tenant's expectation of privacy doesn't apply to the common areas of an apartment building.

The argument seems to come down to exactly how far into the hallway the tenant's home extends. The tenant's lawyer makes the argument that the tenant's home extends into the hallway, where the drug dog alerted the police to the presence of marijuana, and they did not have a right to be there. "The present case is an "easy" case; this Court should refrain from complicating the issue and creating an "apartment exception" to the Fourth Amendment property test, and instead credit the district court's finding that police trespassed upon curtilage and go no further," writes the tenant's lawyer, Mark A. Friese of the Vogel Law Firm in his appellee brief.

In this case, I have to come down on the side of the tenant, even though he was guilty of the offense. I think the Fargo police clearly violated the Fourth Amendment in the way they conducted this search and that the search warrant was illegally obtained. It bothers me that the police even thought they had a right to search a privately owned residence without notifying either the building's owner or the tenants of the building, each of whom have an expectation of privacy in their own homes. It also makes me wonder if this is a standard practice of police departments within North Dakota. If the State Supreme Court overturns the District Court decision to suppress the evidence in this case, we will all enjoy a little less protection under the Fourth Amendment – particularly apartment dwellers.

Article Comments

AndreaJohnson

Oct-15-13 11:36 AM

No sane person would agree that it is reasonable for the government to search on that basis. What scares me is that I strongly doubt the sanity of our government and of those we have elected to the judiciary and the legislative branch.

JackAaah

Oct-14-13 10:13 AM

I feel if you have nothing to hide, how can you argue against it. The next thing will be cameras that can look through the walls of houses, and again from a public area, so how can that be wrong? As long as you've got nothing to hide...

We all know government is doing it for our own good, and we should not question what our government does, so we should allow unfettered enforcement of our laws.

AndreaJohnson

AndreaJohnson

Oct-08-13 8:59 AM

The tenant's lawyer is arguing that the man's apartment extends out into the hallway a few inches from his door. He has no other way to leave his apartment, he sets things down there before he carries them into his apartment and had the door shut, etc. Especially if the apartment building itself is secure and requires people be buzzed in, it's not exactly open to the public. In this case, one of the other tenants or a guest of one of the other tenants was careless about security and let someone in without knowing who they were. Does that excuse the police from taking steps to get permission from the landlord before searching the building? If they had, I don't think there would be much question the search was legal. It would also have been legal if one of the other tenants reported that he smelled pot outside this guy's door and called the police to report it. In that case, the police would have legitimate probable cause to get a warrant.

angeR69

Oct-08-13 2:09 AM

In either case, it would seem to me that the use of a drug-sniffing dog would be an extraordinary means of establishing probable cause. Ordinary means would include casual observation of a passerby. The use of a dog, as they are now commonly used to gain probable cause, seems to allow the officer to peer inside the private space, effectively no different than slipping a camera under the door to take a look around.

The proper use of a dog would be as a tool to use during the search rather than as a pretext to conduct a search.

angeR69

Oct-08-13 2:02 AM

I disagree with your analysis, in part.

The expectation of privacy for the tenant stops at the apartment door. The hallway and other common areas of an apartment building would and should be considered a public area, even in a secured building that is privately owned. I say this because these spaces could be occupied concurrently by many different people, each potentially unknown to the other. Although secured, the tenants individually are not presumed to have absolute control over who enters the building.

That said, and in spite of what I believe to be established legal precedent, it occurs to me that the use of drug-sniffing dogs to establish probable cause for a warrant would in itself violate the 4th amendment, both in this situation and in other situations involving vehicle searches.